ditions were incorporated as the city of Waterville, at which time there were lots in said original town and also in said Hazlewood's addition described as lots 1, 2, 3, 4, and 5, in block 11, and said description so remains at this time; that the above is shown by the records of Marshall county, Kansas, upon which the plats of said town, addition, and city are recorded. (5) That the records of said county show that the legal title to said lots 1, 2, 3, 4, and 5, in block 11, in Hazlewood's addition to the town of Waterville, was at the date of the execution of said mortgage in said Lizzie S. Burtis, now deceased; and that neither said James P. Burtis nor Lizzie S. Burtis, at any time, ever had any title to said lots 1, 2, 3, 4, and 5, in block 11, in the town of Waterville. (6) That on the thirteenth day of August, 1878, a petition in bankruptcy was filed against said defendant James P. Burtis, and that on the seventeenth day of March, 1879, said defendant James P. Burtis was duly discharged in bankruptcy. (7) That said debt evidenced by said note sued on in this case existed at the time of said proceedings in bankruptcy. (8) That since the discharge in bankruptcy of said defendant James P. Burtis, he has not renewed the note, or promised to pay the same. (9) That Lizzie S. Burtis did not sign the note sued upon herein. (10) That there is due on said mortgage, given to the plaintiff to secure the payment of the indebtedness sued on herein, the sum of $1,420.53." And thereon the court made the following conclusions of law: "(1) That said mortgage should be, and the same is hereby, reformed so as to read in the description of said real estate as follows, to-wit: Lots 1, 2, 3, 4, and 5, in block 11, in Hazlewood's addition to the town of Waterville. (2) That no personal judgment can be rendered in this case against the defendant James P. Burtis. (3) That said amount found to be due upon said mortgage, to-wit, $1,420.53, is a first lien on the lots 1, 2, 3, 4, and 5, in block 11, in Hazlewood's addition to the town of Waterville. (4) That defendant William S. Deyoe has a second mortgage on said property, and defendant F. A. Head has a third mortgage thereon, and the amount of said second and third mortgages is undetermined by this court; but that both of said mortgages of said William S. Deyoe and F. A. Head were executed subsequent and are subject to the mortgage of plaintiff. (5) That said defendant Deyoe's mortgage was executed by said James P. Burtis and his said wife, Lizzie S. Burtis, and contained a written condition that it was given subject to plaintiff's said mortgage. (6) Tat defendant F. A. Head had legal notice of the pending of this action, and of the existence and priority of the plaintiff's said mortgage lien, at the time his said nortgage on said property was executed." To the conclusion of fact No. 3, and the conclusions of law Nos. 1 and 3, James P. Burtis, administrator of Lizzie S. Burtis, deceased, and Fred. S. Burtis, excepted. Said defendants filed their separate motions for a new trial, which were overruled; and thereupon the court rendered judgment that the mortgage be foreclosed; that lots 1, 2, 3, 4, and 5, in block 11, in Hazlewood's addition to the town of Waterville, be sold after the expiration of six months from date, according to law, without appraisement, and from the proceeds thereof be paid-First, the costs of the suit and accruing costs; second, the taxes due and unpaid on the property; third, the amount of plaintiff's lien for $1,420.53, and interest; and that the balance of the proceeds of the sale be brought into court, to await further action thereon. Fred. S. Burtis and James P. Burtis, administrator of the estate of Lizzie S. Burtis, deceased, excepted to the judgment, and bring the case here. Martin & Orr, for plaintiffs in error. E. A. Berry and J. A. Broughten, for defendant in error. HORTON, C. J. It is claimed by the plaintiffs in error (defendants below) that as Lizzie S. Burtis did not sign the note executed by her husband, James P. Burtis, and that as she was the owner of the property mortgaged, and that as the discharge in bankruptcy released her husband from the payment of the note, therefore, that the property mortgaged is not subject to the payment of the debt secured thereby. It is conceded that the mortgage was given before the discharge in bankruptcy was obtained, or the application filed therefor, and that the debt secured by the mortgage has never been paid; but it is contended that the discharge under the bankruptcy proceedings. wiped out the debt secured by the mortgage, and that there is no debt whatever existing. The argument of counsel is not sound. The discharge in bankruptcy is not payment; it operates to discharge the bankrupt and future acquisitions, while at the same time the mortgagee, or other lien creditor, is permitted to have satisfaction out of the property mortgaged or subject to lien. In re Campbell, 1 N. B. R. 165; Cole v. Duncan, 58 Ill. 176. A secured creditor against a bankrupt can resort to one of these remedies: First, he may rely upon his security; second, he may abandon it and prove the whole debt as unsecured; or, third, he may be admitted only as a creditor for the balance remaining after the deduction of the value of the security. Assignee v. Perkins, 1 Woods, 383; Reed v. Bullington, 11 N. B. R. 408; In re Hartel, 7 N. B. R. 560. Section 5118 of the U. S. Rev. St. (1878) reads: "No discharge shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise." In Hubbard v. Ogden, 22 Kan. 363, it was said by this court that "where a husband and wife execute a mortgage on two separate pieces of real estate, one of which belongs. to the husband and the other to the wife, and the mortgage is executed for the purpose of securing the individual debt of the husband, that the wife is surety of the husband to the extent of the separate property which she mortgages." See Jenness v. Cutler, 12 Kan. 500. Applying this principle to the case at bar, Lizzie S. Burtis, by executing the mortgage upon her own real estate for the purpose of securing the individual debt of her husband, became surety of her husband, and, within the terms of the bankrupt law, his discharge in bankruptcy did not release or discharge her from liability upon the mortgage. In re Hartel, supra; Reed v. Bullington, supra; Meeks v. Whatley, 10 N. B. R. 498; Roberts v. Wood, 38 Wis. 60. The court did not err in allowing the amended reply to be filed. The granting leave to amend petitions is largely in the discretion of the court. Sections 139, 144, Code; State v. Marston, 6 Kan. 525; v.6p,no.11-50 Kunz v. Grund, 12 Kan. 547; Railway Co. v. Kunkel, 17 Kan. 145. We perceive no error in the court reforming the mortgage as to the estate of Lizzie S. Burtis, deceased. There was sufficient evidence introduced upon the trial to sustain the findings of the court in that regard. Miller v. Davis, 10 Kan. 541; Crane v. Chouteau, 20 Kan. 288. The judgment of the district court will be affirmed. (All the justices concurring.) (33 Kan. 510) WESTERN NEWS Co. v. WILMARTH. 1. CORPORATION-DAMAGES FOR WRONGFUL ATTACHMENT. An action may be maintained against a corporation to recover damages for wrongfully, maliciously, and without just or probable cause, obtaining and levying an order of attachment upon personal property. 2. SAME-PETITION-EVIDENCE. Where it is alleged in a petition brought to recover damages therefor that an order of attachment was wrongfully, maliciously, and without just or probable cause, sued out; that a stock of goods was levied thereon and withheld from the owner for about two months, and that thereby his business was completely broken up,-it is not error on the part of the court, trying the case without a jury, to receive evidence showing the value of the stock on hand at the time of the attachment; that the owner was doing a business from $6,000 to $7,000 per annum, with a net profit of $1,500 to $1,600 a year; and that, on account of the attachment proceedings, his business was broken up,-as in such a case vindictive or exemplary damages are allowable. Error from Shawnee county. Action by George O. Wilmarth against the Western News Company, a corporation duly organized under the laws of the state of Illinois, brought December 14, 1880, to recover damages for the wrongful and malicious issuance and levy of an order of attachment. Thereafter the defendant demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff. At the April term of the court for 1881, and on May 21st, the demurrer was overruled, the defendant excepting. On June 4, 1883, the cause came on for trial before the court, a jury being waived. The court made the following findings of fact: "(1) That the writ of attachment in the case of The Western News Company v. George O. Wilmarth, before Justice BRIER, and under which the property of the defendant, Wilmarth, was attached, was wrongfully issued. (2) That said writ of attachment was sued out without any reasonable or probable cause therefor. (3) That said writ of attachment was not sued out with inalicious motives. (4) The attachments in the cases of John Foley v. George O. Wilmarth, James Douglass v. George O. Wilmarth, Kate Douglass v. George 0. Wilmarth, The Western News Company v. George O. Wilmarth, were under the direction of Frank Patrick, who was then acting the attorney for each of the plaintiffs in the above-entitled actions, levied upon the property of George O. Wilmarth simultaneously, and for the purpose of an equal and mutual advantage of the plantiffs. (5) I further find that all the suits above named were upon a change of venue transferred from Justice BRIER to Justice REED, and from Justice REED to Justice HAZEN; that before such transfers were made, a motion to discharge the attachment in the case of John Foley v. George O. Wilmarth had been made by the defendant, and overruled by Justice BRIER: but after the said transfer of said cases to Justice HAZEN motions were made to discharge the attachments in each of said cases, except the case of John Foley v. George O. Wilmarth, in which last-named case the motion was overruled, for the reason that Justice HAZen held that the action of Justice BRIER in refusing to discharge the attachment in the Foley Case was res adjudicata, and could not be received or disturbed by him. (6) I further find that the plaintiff, Wilmarth, sustained injury and damages by reason of the attachment of the defendant. (7) That the damages sustained by the plaintiff, by reason of the attachment of this defendant, were four hundred dollars. (8) That the stock and fixtures were not removed from Wilmarth's store building until after this dissolution of the attachments. (9) I further find that the value of the goods of plaintiff attached was one thousand dollars, and that they were sold by the constable for the sum of four hundred dollars." Thereon the court gave judgment in favor of the plaintiff for the sum of $400, together with all costs. The defendant filed a motion for a new trial, which was overruled. The defendant excepted and brings the case here. Frank Patrick, for plaintiff in error. HORTON, C. J. The petition alleged inter alia that the Western News Company, a corporation organized under the laws of the state of Illinois, commenced on September 17, 1880, an action against George O. Wilmarth for the recovery of money; that on the day of the commencement of the action, said corporation wrongfully, maliciously, and without just or probable cause therefor, obtained an order of attachment in that action against the property of Wilmarth, and thereafter entered the store of Wilmarth, in the city of Topeka, and attached and took possession of all his goods, wares, and merchandise; that on November 10, 1880, such proceedings were had that the order of attachment was duly discharged. 1. It is contended that the trial court erred in overruling the demurrer to the petition, for the reason that "corporations are not liable for torts where the ground of legal responsibility is evil motive." The law is otherwise. "Corporations are responsible for the wrongs committed or authorized by them, under substantially the same rules which govern the responsibility of natural persons. It was formerly supposed that those torts which involved the element of evil intent, such as batteries, libels, and the like, could not be committed by corporations. Inasmuch as the state, in granting rights for lawful pur poses, had conferred no power to commit unlawful acts, such torts committed by corporate agents must consequently be ultra vires, and the individual wrongs of the agents themselves; but this idea no longer obtains." Cooley, Torts, 119; 2 Add. Torts, § 1304; 2 Wait, Act. & Def. 337; Vance v. Railway Co. 32 N. J. Law, 334; Goodspeed v. Bank, 22 Conn. 530. The rule is now well settled that, while keeping within the appar ent scope of corporate powers, corporations have a general capacity to render themselves liable for torts, except for those where the tort consists in the breach of some duty which, from its nature, could not be imposed upon or discharged by a corporation. 2. It is next contended that the court below erred in admitting the testimony of Wilmarth as to injury to his business, credit, and loss of probable profits. The evidence objected to tended to show that, at the time of the service of the order of attachment, Wilmarth was engaged in the book and stationery business in the city of Topeka, where he had been so engaged for several years; that he had a stock on hand worth about $1,200, and fixtures of the value of $400; that he was doing a business from $6,000 to $7,000 per annum, with a net profit of $1,500 to $1,600 a year; that the property of Wilmarth was held under the order of attachment until November 10, 1880, the date the attachment was discharged; and that, on account of the attachment proceedings, his business was broken up. On the one hand, it is asserted that the loss of probable profits and business credit are too speculative and remote to be considered in the assessment of damages. On the other hand, it is claimed that loss of credit and probable profits afford a legitimate ground of recovery where the writ of attachment is wrongfully and maliciously sued out. As the case comes to us, it is unnecessary to pass upon this question so elaborately discussed by the counsel of the parties in their briefs. If an attachment is sued out willfully and maliciously, under all the authorities, the injured party is entitled to recover damages for his loss and trouble, not only compensatory, but exemplary. Wiley v. Keokuk, 6 Kan. 94; Hoge v. Norton, 22 Kan. 374; Winstead v. Hulme, 32 Kan. 568; S. C. 4 PAC. REP. 994; Dow v. Julien, 32 Kan. 576; S. C. 4 PAC. REP. 1000. There is nothing in the record showing that the district court included in the judgment any damages for injury to business, credit, or loss of probable profits. Upon this point the findings of the court are "that the plaintiff, Wilmarth, sustained injury and damages by reason of the attachment of defendant; and that the damages sustained by the plaintiff, by reason of the attachment of defendant, were $400." It further appears that at the time the goods were attached their value was $1,000, and that soon after the attachment was dissolved they were disposed of at public sale for the sum of $400 only. Of course, Wilmarth was entitled to recover damages for injuries to his stock of goods by its depreciation in value while under the control of the attaching officer. If counsel had desired to present the question whether damages for loss of credit or probable profits were embraced in the judgment, a request for a finding thereon should have been made. If it be suggested that the evidence objected to was introduced to establish damages for loss of credit and probable profits, it is a sufficient answer to say that this by no means follows. As exemplary damages are recoverable for the wrongful and |